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SPEECH 



OF 



HON. JOHN CADWALADER, 

OF PENNSYLVANIA, 



ON THE 



LEGISLATION OF THE UNITED STATES UPON THE SUBJECT 
OF SLAVERY IN THE TERRITORIES. 



DELIVERED 
IN THE HOUSE OF REPRESENTATIVES, MARCH 5, 1856. 






WASHINGTON : 

PRINTED AT THE CONGRESSIONAL GLOBE OFFICE. 

1856. 



LEGISLATION OF CONGRESS UPON SLAVERY IN THE TERRITORIES. 



The House being in the Committee of the Whole on the 
Bt.ile of the Union, and having under consideration the 
President's Annual Message, 

Mr. CADWALADER said: 

Mr. Chairman: 1 avail myself of this occasion 
to reply to the remarks of the gentleman from 
my own State [Mr. Grow] who last addressed 
the House. His remarks deserve the particular 
consideration of those who, like myself, differ 
altogether from him in opinion. He is one of 
the frw members of the present Congress from 
the State of which I am a citizen, who do not on 
this floor misrepresent their constituents. Other 
members from the same State who here act 
with him are the Representatives of districts 
which, since they were elected, have, by over- 
whelming votes, unequivocally condemned the 
political views which they still profess to sustain. 
On a former occasion, shortly after I took my seat 
in this Congress, I stated and explained the causes 
and modes of those deceptive artifices through 
which opposing political elements had been com- 
'bined in their respective districts for the temporary 
defeat of the Democracy. I am therefore now re- 
lieved from the necessity of recapitulating these 
details. 

I have the honor to represent a district in which, 
through Democratic organization, these combina- 
tions were happily defeated in the outset. Rep- 
resenting such a constituency, I rejoice that, as 
I rise to address the House in opposition to my 
colleague's animadversions upon the President's 
views on the subject of congressional legislation 
upon slavery in the Territories, a communication 
by telegraph is. received announcing that the 
Pennsylvania Democratic Convention, now in 
session at Harrisburg, have unanimously declared 



their approval of the President's views of the 
subject, and have in decisive terms indorsed and 
approved the act of the last Congress by which 
the territorial governments of Kansas and Ne- 
braska were organized. It requires no prophetic 
spirit to predict with confidence that, when the 
vote of Pennsylvania in the approaching presi- 
dential contest shall have been counted, the ma- 
jority by tens of thousands in favor of the can- 
didate of the Democracy will prove the sincerity 
of her devotion to the constitutional rights of our 
brethren of the slaveholding States. 

For another and much more important reason, 
the remarks of the same gentleman [Mr. Grow] 
ought now to receive particular consideration. 

This House is organized under an anti-Demo- 
cratic majority, whose shortlived influence, if it 
were not already extinct, could not long survive 
certain recent suicidal measures of the combined 
factions of which it is composed. Eut, notwith- 
standing the present or future external annihilation 
of these factions, the action of this House during 
this Congress will necessarily receive its direction, 
in a greater or less degree, from its internal organ- 
ization, which has unhappily been dependent upon 
this influence. Now, the gentleman [Mr. Grow] 
occupies through this influence the responsible and 
influential position of chairman of the Committee 
on Territories. The future organization of terri- 
torial governments on this continent is, in my 
humble opinion, at this crisis, the most important 
subject of congressional consideration. As the 
chairman of this committee has assumed upon 
himself the office of opening the debate on the 
President's message, and has thought proper to 
select as the subject of his remarks that portion 
of the message which relates to the territorial 



governments established by the last Congress, we 
have a just right to measure his views by such a 
standard as may determine whether their exten- 
sion is proportional to the magnitude and import- 
ance of the functions of the committee of whose 
views he has been constituted the exponent. 

In defining the functions of this committee we 
naturally regard, first, the extension of our whole 
country, and next, that of the Territories. The 
superficial area of the United States, according to 
the latest geographical compilations, is more than 
three and a third millions of square miles. There 
are some errors in that computation; but the actual 
area is probably not less than three and a quarter 
millions of square miles. Of that area, less than 
one half has been organized into States. Of the 
thirty-one existing States, two, Texas and Cali- 
fornia, cannot be regarded as permanently organ- 
ized. Within the restricted boundaries of Texas, 
as truncated on the north and on the west with 
her own consent in 1S59, her present area is, per- 
haps, not much less than 300,000 square miles. 
By the legislation of 1850 her territory is divisible 
into five States, as it was before her limits were 
thus narrowed. By the same ratio California will 
be divided hito at least three States. Thus, there 
are only twenty-nine States whose organization 
can be regarded as permanently completed. These 
twenty-nine States include less than one third of 
the extent of our whole country. Beyond their 
limits, we have, including Texas and California, 
a territorial extension of more than two millions 
of square miles, out of which certainly more than 
thirty, and perhaps as many as forty, or more, 
States ought hereafter to be organized. 

This brief statement may give some idea of 
the magnitude and importance of the proper func- 
tions of the Committee on Territories of this and 
succeeding Congresses. When we look forward 
to the future extension of our population, must 
we not shudder at the probable effect of the agita- 
tion which such arguments as those of the chair- 
man of the present committee have a tendency to 
provoke? Can we hope to organize Territorial or 
State governments under a disturbed state of feel- 
ing, such as his arguments would engender? It 
would be impossible. We are soon to be divided 
into sixty, or more probably seventy States, if 
the normal conditions of our country's prog- 
ress can be fulfilled. These conditions of our 
progress, and of its attendant happiness and pros- 
perity, cannot be fulfilled unless the legislation on 
the subject of slavery in the Territories is to be reg- 
ulated, under the Constitution, with a due regard 
to the rights and interests of the slaveholding 



States, which the Constitution purports to secure. 
Of the sixty or seventy States of which our 
Union ought, by the proper fulfillment of these 
conditions, to be composed, the greater number 
by far must, even under circumstances the most 
favorable to the southern portion of our country, 
become non-slaveholding States. Through the 
operation in part of climate, in part of social af- 
finities and in part of political causes whose effect 
has already been determined, it appears inevitable 
that the number of non-slaveholding States will — 
in the proportion of nearly two to one — exceed that 
of the slaveholding. With a view to this inevit- 
able future, docs the chairman of the Committee 
on Territories expect the peace and harmony of 
our Union to be preserved, unless the future legis- 
lation of the country can be conducted, on tho 
principles recommended in the President's mes- 
sage, with a just regard to the rights of such of 
our sister States as are thus destined to find them- 
selves permanently in a minority, and, for pur- 
poses of self-protection, must naturally look with 
jealous anxiety upon every exercise of doubtful 
powers, and every unnecessary exercise of ac- 
knowledged powers, by a dominant majority ? 

As I am not disposed to look upon the dark 
side of the picture, I have no serious fears of tho 
future. But, deplorable indeed would be the con- 
templation of the future, if our administrative 
statesmen were to exercise the functions of gov- 
ernment in that retrogressive order which wa 
have witnessed in the discussion of to-day; con- 
tenting themselves with dwelling upon the mem- 
ory of small things of the past, instead of con- 
sidering the great exigencies of the future. Wo 
may hope that the Committee on Territories, nob- 
withstanding their chairman's unpromising pref- 
ace of their future works, will be duly sensible 
of the paramount importance of providing for tho 
general interest, in view of these great exigencies. 
But, as their chairman has occupied the attention 
of the committee in the contemplation of by -go no 
events only, and as he has not, even in thus 
dwelling upon the past, manifested an accurate 
knowledge of the history of the former legislation 
of the United States upon the subject of slavery 
in the Territories, I propose to devote the residue 
of the hour allotted to me by the rule of tho 
House to reviewing briefly the history of this 
legislation so far as may be necessary for the de- 
velopment of the leading moral and political prin- 
ciples which have constituted its foundation. 



The ultimate practical proposition which I desire 



to state as the result to winch my remarks will 
tenu, is, uiat when, after the treats of 1848 with 
Mexico, it became incumbent on the Congress of 
the United States to legislate as to our possessions 
acquired under that treat}'-, there was amoral and 
political necessity to choose between two alterna- 
tives. One alternative was to extend to the Pacific 
ocean the line of the so-called Missouri restriction; 
thus making the latitude of 36° 30' the division be- 
tween the non-slaveholding and the slaveholding 
territories on both sides of the Rocky mountains. 
The other alternative was to regard the restriction 
as wholly abrogated and annulled eastward as 
well as westward of the Rocky mountains. To 
state the proposition more briefly, in another form : 
Justice required that the restriction should not be 
maintained eastward of those mountains if it could 
not be extended westward of them to the Pacific 



A preliminary proposition of fact, established, 
as I think, by the legislation of which I desire to 
present a connected review, is, that the United 
States, in exercising their duty to legislate for the 
Territories as the common properly of the several 
Stales held in trust for their common benefit, have 
regarded the term " common benefit"as admitting 
of a twofold application, or definition, so far as the 
subject of slavery was involved. According to the 
less complex and less questionable of these defini- 
tions the trust might be fulfilled by abstaining 
wholly from legislation on the subject of slavery 
during the territorial condition of the country. 
According to the other definition, if a partition of 
the territory between the slaveholding and the non- 
slaveholding population were required in order to 
promote the common benefit, and such a partition 
could be carried into effect in a manner mutually 
beneficial, the power of making it might be 
exercised by the United States. The territorial 
settlers would, in either case, be at liberty, by 
their constitutions when framed, to regulate the 
subject of slavery definitively for themselves. 
During their territorial condition, unless a mu- 
tually beneficial partition of the Territory could 
be effected, Congress has abstained from legisla- 
tive interference with the subject. 

Many statesmen of the highest eminence have 
denied — many others have doubted — the consti- 
tutional power to make an effectual partition of 
this character. On the other side of the question, 
some of our distinguished statesmen have always 
contended that Congress has the constitutional 
power to exclude slavery absolutely from all the 
Territories. A large number of those who have 
recognized the existence of this supposed legal 



power of total *v,i..J on) havC; nowcver? ad mit- 

ted that the power could not be rightfully exercised ; 
conceding that a fraudulent abuse of such a power 
would be committed in any exercise of it for the 
benefit of the proprietary owners of one portion of 
the Territory to the total exclusion of the propric- 
tors of the other portion. The same reasoning 
would recognize the immorality and injustice of 
an unequal or disproportional partition. These 
were abstract questions, upon which statesmen 
have differed, and may continue to differ. Eut, 
as a practical truth, it will be shown, before I have 
concluded my remarks, that no act of legislation 
has ever been passed upon the principle of total 
exclusion of the people of the slaveholding States 
from the enjoyment of their property in slaves 
within the Territories. Until after the treaty with 
Mexico in 1848, there had never been any legis- 
lation for the partial exclusion of this property 
upon any principle other than that of a partition 
mutually beneficial. An apprehension in the 
minds of the people of the slaveholding States', 
that a departure from this practice had been 
threatened by the legislation of 1850, was removed 
by the salutary legislation of 1854, which happily 
quieted their minds upon the subject. 

In matters of statesmanship it is often unwise 
to play the part of mere lawyers. We should, 
of course, never violate the law. But the question 
or right is often quite independent of that of legal 
poicer. It is by no means true that every power 
which can be lawfully exercised may be rightfully 
exercised. There is nothing in the Constitution 
to prevent the Government of the United States 
from wrongfully exercising many most pernicious 
powers. Their exercise, even against the spirit 
of the Constitution, might be within the scope of 
the powers which the Constitution itself confers. 
Thus a standing army of a million of men can 
be raised under an act of Congress in time of 
peace; and if the soldiers be not quartered on the 
inhabitants, the act would be lawful under the 
Constitution. Yet it would be manifestly against 
the spirit of the Constitution. No lawyer would 
question its validity; but an honest statesman 
would revolt at its iniquity, and might counsel 
revolution itself as preferable to submission. So, 
if we look merely to decisions of the Supreme Court 
of the United States, a corporate body of specu- 
lators, under the name of a bank, may be consti- 
tuted by Congress the fiscal agents of our Govern- 
ment. But no American statesman of the present 
day — whatever may be his opinion on the legal 
question — contends that the fiscal power of the 
State can be rightfully placed, in this manner, for 
a number of years, beyond the control of those 



6 



organs of government whose authority is depend- 
ent upon the exercise of the elective franchise in the 
several States, and whose functions are determined 
by the Constitution. These examples, which might 
be multiplied, suffice to show theinconclusiveness 
of the general reasoning of those who assume 
that whatever is legal is, therefore, necessarily 
rightful in a moral or a political point of view, 
and of the reasoning in particular of those who, 
conceiving the total exclusion of slaves from the 
Territories to be lawful, assume that such exclu- 
sion is, therefore, necessarily rightful. 

Before concluding my remarks I hope to show 
that such total exclusion would not only be im- 
moral and unjust, but would likewise, in a legal 
sense, be unconstitutional. I postpone for the 
present this demonstration, because it may be 
made incidentally during the historical review of 
the past legislation which I propose to present. 

Eefore entering upon these historical details, I 
desire to state succinctly the reasoning upon which 
many statesmen who think the constitutional 
power of Congress over the Territories limited by 
the trust under which they are held for the com- 
mon benefit of the several States, arc, neverthe- 
less, of opinion that legislation which, in effect, 
divides the Territories between the people of the 
non-slaveholding and those of the slaveholding 
States, is consistent with, and authorized by, this 
trust. 

Their argument has been, that any territorial 
possessions, owned in common by private or by 
public proprietors, may be enjoyed for their com- 
mon and mutual benefit in cither of two modes; 
firstly, may be held in common and undivided, 
with an equal participation by every owner in all 
the parts; secondly, maybe justly and equitably 
divided by a partition. Some, who, professedly, 
were strict constructionists, stated the question 
to be, primarily, whether, in parceling out our 
Territories for the common benefit, they could be 
enjoyed in common without a relative, if not an 
absolute, necessity of making a partition. It was, 
they said, a lamentable truth, but a truth which 
no man could venture to deny, that the slave- 
ingahd the non-slaveholdingpopulation could 
not coexist conveniently, if at all, under one and 
Ih ame local government. Upon this allegation 
they based their argument, that without a partition 
could be oo practical equal participation in 
the benefits derivable from our ownership of these 
territorial dependencies. 

On the one hand, the incompatibility of any 
prosperous coexistence of the two kinds of popu- 
lation under the same local government, was fully 



acknowledged before our Constitution was framed, 
and at the time of its formation. It has been re- 
cognized ever since, and, as we cannot but fear, 
must continue to be acknowledged until after the 
condition of the Territories, witli reference to this 
question , shall have been permanently determined, 
and placed beyond the range of any possible con- 
gressional action. These considerations of rela- 
tive necessity go very far to sustain the argu- 
ment in favor of an inherent power in the General 
Government to make a partition of the territorial 
dependencies. 

On the other hand, in support of the opposing 
argument, it has been urged that, according to 
sound political rules of construction of the Con- 
stitution, a power not expressly given cannot, 
from any relative or even absolute necessity, be 
implied; and that this, as a power, arising from 
implication alone, must, therefore, be excluded. 

By the legislation of Congress in 1850 and 
1S54, the question is rendered practically obso- 
lete, except as its investigation may shed light, 
historically, upon prior constitutional provisions 
and legislative enactments. A recurrence to the 
subject is however indispensable in every stage 
of this historical investigation. 

The difficulty which such a partition might bo 
expected to remove occurred upon the adoption 
of the Constitution of the United States. It was 
remedied, as I will hereafter show, by means of 
a partition made, we may say,cotcmporaneously 
with the adoption of the Constitution. After the 
lapse of nearly the third of a century, the diffi- 
cultyrccurrcd as to the territory ceded by France. 
After controversial agitation, an attempt was 
made to remedy it by means of a partition of this 
territory. This was a partition peculiar in its 
character, to which I will have occasion likewisa 
to refer again. After another interval of a quarter 
of a century, in order to prevent a like difficulty 
from occurring in the case of Texas, there was 
an extension of the supposed principle of the 
former partition. The principle of these acts was 
clearly that each successive new acquisition of 
territory should be shared with as close an ap- 
proximation to equal or proportional benefit to 
the different Sections Ofthe Union as might, under 
tin- circumstances, be practicable. 

The mode in which the partitions had been 
successively made, was always, in form and in 
effect, beneficial to tin; non-slaveholding States. 
From one portion ofthe territory slavery was, in 
each case, by the language of the law, exclude! 
absolutely, while slavery was to exist in the 
other portion, or to be excluded from it, as its 
inhabitants might constitutionally determine. 



After the Mexican war, an attempt was unsuc- 
cessfully made to apply again the principle of these 
partitions to new territorial acquisitions. This 
attempt failed, because, as I will presently have 
occasion to show, local considerations rendered 
the principle inapplicable. We were driven by 
necessity. to adopt here the nominal principle of 
common possession with common enjoyment. 
But as the Mexican laws locally in force had 
excluded slavery from these territories, the appli- 
cation of this principle to them was illusory so 
far as any possibility of participation in their 
further settlement by slaveholders might be con- 
cerned. Property in slaves was thus, in effect, ex- 
cluded wholly from their limits. The principle of 
the former partitions having become inapplicable, 
and slaveholding settlers having been altogether 
excluded from this territory, the slaveholding 
States were, of right, entitled to an indemnification 
for their loss if it could be afforded by giving to 
them access, with their slaves, to other territory. 
If such access could be given without any viola" 
tion of existing rights of others in such territory, 
there could be no just cause for its denial. This 
was true, although their exclusion from the ter- 
ritory acquired from Mexico might have been the 
result of unavoidable causes, for which the United 
States were not responsible. Equal participation 
in the beneficial enjoyment of this territory having 
become impossible, and the whole benefit of its 
enjoyment having, from the first, enured to one 
class of its common proprietors, the other class 
ought to receive an indemnification from some 
other portion of the common property. This 
principle was the moral basis of that praise- 
worthy legislation of 1851 which the chairman 
of the Committee on Territories has most inju- 
diciously denominated a "conspiracy against 
freedom." 

To the northward of the latitude of 40°, climate 
and other considerations make slavery practically 
out of the question. To the southward of 36° 30', 
on this side of the Rocky mountains, except in 
thnf portion of what was taken from Texas and 
annexed to New Mexico in 1850, the institution 
of slavery is now established. From all parts of 
our country to the westward of the Rocky mount- 
ains it is excluded. This exclusion is probably 
permanent. The Territory of Kansas, lying west- 
ward of the State of Missouri, between the paral- 
lels of latitude of 37° and 40°, is, therefore, now 
the only space in which the question of slavery 
is to be regarded as of any practical importance. 
The question is, whether the force of a numerical 
majority from the northern States can be right- 



fully exercised in order to deprive our southern 
brethren of the privilege of free access, with their 
slave property, to this Territory— a Territory, be 
it remembered, within degrees of latitude which, 
to the eastward of its limits, include already five 
slaveholding States, and much more land of slave- 
holders' than land from which slavery is excluded. 

Let us now trace the history of these success- 
ive partitions. 

The first partition of territory was made by a 
scries of acts, in the years 1787, 1789, and 1790, 
followed by an act of 1802. The power of tho 
Confederacy which preceded our present Constitu- 
tion , if determinable solely by the terms of the Ar- 
ticles of Confederation, was, perhaps, not greater 
on the subject in question than that of the Con- 
federacy subsequently organized under our present 
Constitution. But there was this difference: Un- 
der the old Confederacy^, members of Congress 
were in constant communion with the Legisla- 
tures and executive governments of the several 
States which they respectively represented. They 
constantly acted under direct legislative instruc- 
tions. As representatives of the several States, 
they might be, and often were, authorized by their 
respective Legislatures, to perform acts of sover- 
eignty — exercising a delegated authority not un- 
like the treaty-making power, and binding the 
States by compacts with the confederated Gov- 
ernment. It is difficult to measure the legal extent 
of their power, when exercised under the sanction 
or acquiescence of the States. Their action, when 
ratified by the States, especially when the States 
were unanimous, might thus be the exercise of a 
power taking effect independently of the Articles 
of Confederation. 

The boundaries of the United States, under the 
treaty of 1783 with England, included not quite 
eight hundred thousand square miles, of which 
about one half was organized into States, and tho 
other half was composed of Territories not thus 
organized. 

These Territories were, as we know, the sub- 
jects of successive cessions by the different Statc3 
to the United States. The language in which the 
subjects of these cessions were defined, and tho 
conditions on which they were received, have 
been too often overlooked. They were expressly 
cessions of both soil and jurisdiction. The two- 
fold expression, "soil and jurisdiction," was 
employed in every case. The cessions were not 
made or received unconditionally. The Statea 
which had exacted them had, in their published 



8 



manifestoes on the subject, declared that these 
Territories, wrested from England as the common 
enemy by the blood and treasure of all the Stales, 
should be considered a common property, and 
should be parceled out by Congress into free and 
independent States. By the resolution pf Con- 
gress of 1780, it had been stipulated that the unap- 
propriated lands that might be ceded or relinquish- 
ed to the United States by any particular State, 
should be disposed of for the common benefit of the 
United States, and be settled and formed into dis- 
tinctrepublican Sta tes, which should become mem- 
bers of the Federal Union, and have the same rights 
of sovereignty, freedom, and independence as the 
other States. Under this engagement, the United 
States thus received the grant of the jurisdiction 
as well as the soil of these Territories. A solemn 
pledge was thus given that the Territories should 
be governed for the common benefit. In the de- 
bates and proceedings of the Federal convention, 
and of the Virginia convention, it is manifest that 
this was understood to mean " the common ben- 
efit" of the slaveholding as well as of the non- 
slaveholding States. 

Before the peace of 1783, some of the States had 
begun the work of liberating their slaves. All 
the States, at the time of the Declaration of In- 
dependence, had been slaveholding, including 
Massachusetts, though this has in her case been 
denied. The original New England articles of 
confederation of the previous century, to which 
Massachusetts was a party, had contained a clause 
for the rendition of fugitive slaves. The law of 
Massachusetts, like that of the other States, rec- 
ognized and protected property in slaves until the 
adoption of her constitution, framed during the 
war of the Revolution.* But at the time of the 
adoption of the Federal Constitution, a majority 
of the States — seven of the thirteen — were non- 
elavcholding.f The jealous apprehension on the 



* "The P>osto:i Gazette and Country Journal" was 
"printed by Benjamin Eades in/Watertowh." No. 1105, 
publish; d on the 2£dof July, L776, contains the Declaration 
of Independence, and the following advertisement : 

"To be Sold. — A stout, strong, healthy negro man, about 
' twenty-five years of age ; hashad the small-pox; can turn 
' his hand to almost anything ; lie likes fanning business the 
'best; he is well clothed. The pay may be on interest, 
' giving security. Inquire of the printer." 

The paper is in the possession of Colonel Peter Force. 

t It would have been, with more accuracy, said of some 
of these seven States, that they had passed laws for the 
prospective gradual abolition of slavery within their limits ; 
and of others, that the number of slaves within their limits 
was very small, and that the views and policy of their in- 
habitants were generally opposed to slavery. 

Pennsylvania, and the six States to the northward and 
eastward of her, were, for practical purposes, regarded as 
non-slaveholding at the time of the adoption of the Consti- 
tution. (See the next note.) 



part of the slaveholding States of an infringement 
of their equal privileges, which now exists, was 
at that day manifested. Those who, in the Vir- 
ginia convention, opposed the adoption of the 
Constitution, inviting attention to the Territories, 
accused the non-slaveholding States of withhold- 
ing from what was then the West the navigation 
of the Mississippi, throughjealousylestthe power 
of the slaveholding States might, perchance, there- 
after equal that of the non-slaveholding; and 
prophesied that the non-slaveholding States, if 
they retained their numerical majority, woulr? 
unfairly prevent the admission into the Union of 
new States in which slavery might be tolerated.* 
The defenders of the Constitution in that conven- 
tion denounced these charges against their north- 
ern brethren as illiberal and unjust. 

Through menacing perils of disunion, at that 
crisis of our destinies, we happily passed unhurt. 
Through similar perils, which followed, we like- 
wise passed. In the future such perils will prob- 
ably be diminished, rather than increased. But 
this happy result cannot be promoted by such 
discourses as that of the chairman of the Commit- 
tee on the Territories. 

I have -stated that, at the time of the establish- 
ment of our present Constitution, the area of the 
original States was about four hundred thousand 
square miles, exclusive of the Territories. Three 
fifths of this area was then slaveholding, and two 
fifths only non-slaveholding. f The Territories 
were together of an area nearly equal to that of 
the States. The partition of these Territories 
then made was carried into effect by successive 
acts, partly of the old Congress of the Confeder- 



* In the debate of the 23d of June, 1783, on the third sec- 
tion of the fourth article of the Constitution. Mr. Grayson 
said : " Mr. Chairman, it appears to me, sir, under this sec- 
' tion, there can never be a southern State admitted into 
' the Union. There are seven Slates, who are a majority, 
' and whose interest it is to prevent it. The balance being 
' actually in their possession, they will have the regulation 
' of commerce, and the Federal ten miles square wherever 
< they please. It is not to be supposed, then, that they will 
' admit any southern State into the Union so as to lose that 
' majority." 

fThe slaveholding 21.1,700 square miles, composed of the 
present States of Virginia, North and South Carolina, 
Georgia, Maryland, Delaware, and Kentucky ; the non- 
slaveholding, comprising the present States of New Hamp- 
shire, Vermont, Massachusetts, Maine, Connecticut, Rhode 
Island, New York, New Jersey, and Pennsylvania, tog 
164,000 square miles. The names of the new Stales formed 
within the limits of the original thirteen are here printed in 
italics. 

The word " non-slaveholding,'' as used here and in the 
text, applies to all the old Stat.-s whose known policy Wis 
adverse to the indefinite continuance of slavery within their 
limits, whether it had already been legally abolished within 
them or not. (See the last two Notee.) 



9 



ation, and partly of the Congress under the pres- 
ent Constitution. This legislation gave to the 
non-slaveholding population about five eighths 
of the territorial domain. The slaveholding pop- 
ulation retained only about three eighths. The 
extensional area of the slaveholding and non- 
slaveholding parts of the Union was thus nearly 
equalized. There was then a cautious observ- 
ance of those compacts securing the rights of the 
slaveholding States which the chairman of the 
Committee on the Territories would now tear to 
tatters and scatter to the winds. 

The ordinance excluding slavery from the 
Northwestern Territory was passed by the Con- 
gress of the Confederation in July, 1787. In 

August, 1787, a cession of other territory was II the Supreme Court of the United States has said, 
made by South Carolina, and accepted by the for the most complete recognition of the title of 
Congress of the Confederation without any men- j the inhabitants of the slaveholding States to their 
tion of slavery. In September, 1787, the Consti- i property in slaves. The Constitution treats slaves 
tution was subscribed by the Federal convention, as persons and as property; regarding them as 
The cession of 1789, by North Carolina, of the I inferior persons, who were subjects of private 
territory. lyirtg westward of her limits, was ac- property. As persons, they were not to be com- 
Heepted, in 1790, by the first Congress under the 
Constitution. It contained the remarkable words: 

"Provided always, That no regulations made, or to be 
made, by Congress shall tend to emancipate slaves." 

This territory lay wholly to the southward of 
the line of 3G° 30' — the old Virginia boundary — ' 



for the exclusion of slavery within this Territory. 
These apparent diversities in congressional legis- 
lation are all reconcilable with one another, if we 
regard the successive acts as together constituting 
a partition of the Territory with reference to this 
question of slavery. They are otherwise alto- 
gether inexplicable. 

It is, here, material to bear in mind that the 
Constitution intervened between the ordinance of 
17S7 and the acceptance, in 1790, of the cession 
made by North Carolina. This Constitution — 
the charter of our title to the most important 
political blessings, and to many of the most highly 
valued social as well as domestic blessings which 
we enjoy — gave to Congress no control of the 
subject of slavery. It nevertheless provided, as 



putcd in the enumeration of inhabitants etherwise 
than in view of the political and individual rights 
of their proprietors. In that computation it pro- 
vides that five of them shall be counted as equal 
to only three whites. "While it calls them " per- 
sons, "it thus recognizes their inferiority as a race, 
which, under the North Carolina charters of 16774 It treats them as subjects of property, providing 



and 1729, had originally extended to the Pacific 
ocean, and would still have extended to that ocean 
if the treaties of 1763 and 1783 had not limited our 
territory on the westward by the Mississippi. 

These differing enactments of 1787 and 1790 
were thus applicable to different portions of the 



that the direct taxation shall, with reference to 
them, be in the same ratio as the representation — 
three to five. It provides for the recaption and 
restoration of fugitive slaves, as property, to their 
owners. It treated them as a subject of commerce 
— a commerce which Congress might regulate, 
except with reference to their importation from for- 
territorial domain — the slaveholding southward eign parts into States of the Union desiring to in- 



of latitude 36° 30', the non-slaveholding almost 
w r holIy northward of 39°, and none of it extending 
southward as far as 37°. These enactments, 
together, effected the first statutory partition of 
territory ever made with reference to the question 
of slavery. The cession by North Carolina was 
followed in 1802 by a cession of territory made by 
Georgia, under a condition which secured the 
continuance of slavery. When the ordinance of 
1787 was passed at Philadelphia, the Congress 
of the Confederation which enacted it, and the 
convention which framed the Constitution, were 
both in session there. The members of both 
bodies were, of course, in frequent communica- 
tion with one another. The ordinance for the 
Northwestern Territory passed the Congress by 
a unanimous vote of the States. In 1784, this 
Congress had nevertheless rejected a proposal 



crease their slave population. This importation 
was left open to the people of these States, by an 
express exclusion of the power to prohibit such 
importation, for twenty years. 

The purpose of this clause of the Constitution 
was, that no portion of the slaveholding part of 
the country should be "left at liberty to determine, 
arbitrarily, by a selfish standard, the future value 
of slaves in the then unsettled territories of the 
South, or to prevent their introduction into those 
territories. The States of South Carolina and 
Georgia would not have adopted the Constitution 
if this provision had been omitted. .i;ljr;.j 

The spirit of the provision which prohjbitedi 
congressional interference; with blm foreign slaves 
trade until 1808,was muuifesitediitt another clause) 
of the Constitution ,:whi4h r whaigiii-givosit<»Gon^ 
jrress and the States^Hrtdeir certain conditions,- th* 



10 



power to amend the Constitution, excepts this 
temporary right of importing slaves from Africa. 
In order that their proportional number and value 
in different parts of the slaveholding country 
might be equalized, this clause was expressly 
excepted from the operation of the clause author- 
izing amendments. In a like spirit, the provision 
that no capitation or direct tax should be laid 
otherwise than in proportion to the census by 
which five slaves were to be enumerated as three 
persons, was permanently excepted from the op- 
eration of the clause authorizing amendments. 
This clause, moreover, while it allowed two thirds 
of each House of Congress to suggest an amend- 
ment to the Constitution, required a concurrent 
vote of three fourths of the States in order to 
pass it. This was cautiously provided, lest the 
greater number of the non-slaveholding States 
should ultimately overpower the slaveholding. 

A clause in the Constitution conferring upon 
Congress the power to dispose of, and make all 
needful rules and regulations respecting, the ter- 
ritory or other property belonging to the United 
States, has been supposed by some persons to 
confer upon Congress an unconditional sovereign 
political, as well as proprietary, jurisdiction over 
the Territories. Under this clause, it has, there- 
fore, been assumed by some persons that Con- 
gress has the power — whether it has or has not 
the right — to exclude slavery wholly from the 
Territories. If this clause conferred any other 
than a proprietary jurisdiction, it would not have 
exempted the United States from their obligation, 
incurred under the resolution of 17S0 and their 
acceptance of the cessions made under it, to ex- 
ercise their jurisdiction over the Territories for 
the common benefit of the slaveholding and non- 
slaveholding States. Another clause of the Con- 
stitution provided that all engagements entered 
into before the adoption of the Constitution should 
be as valid against the United States under the 
Constitution as against the Confederation. In 
accepting the cessions of both jurisdiction and soil 
upon the conditions provided in the resolutions 
of 1780, the United States had entered into an 
engagement to abide by those conditions. 

But, according to the most approved interpreta- 
tion of the Constitution, the clause respecting the 
Territories gave to Congress no other than a pro- 
prietary jurisdiction. This appears by the'context 
in the particular clause itself, and by contrasting 
its provisions with those of the clause conferring 
on Congress, in very different Language^ thepower 
to exercise exclusive legislation over such district 
)f limited dimensions as might, in a prescribed 



mode, become the seat of Government, and to 
exercise like authority over places purchased with 
the consent of the States for certain prescribed 
purposes. This contrast of language authorizes 
us to distinguish the words applicable to propri- 
etary, from those applicable to general political 
jurisdiction. The contrast is further strengthened 
by recurring to the terms of the cessions of the 
territories to the United States. These cessions, it 
will be remembered, had expressly transferred the 
jurisdiction, as well as the soil. On one occasion, 
almost thirty years ago, the Supreme Court of 
the United States appear to have regarded as im- 
material the inquiry whether the general political 
jurisdiction of Congress over the Territories 
was derived from the clause in which the pro- 
prietary jurisdiction is defined, or was deducible 
from other sources of power. Whatever may 
have there been its immateriality in a legal point 
of view, there can be no doubt of its importance 
as a question of statesmanship involving politi- 
cal considerations. As a purely legal question, 
the preliminary distinction between the proprie- 
tary disposal of the public domain and the exer- 
cise of general political sovereignty, was fifteen 
years later, more particularly considered by the 
Supreme Court in the investigation of the title to 
the New Jersey shore oyster fisheries. A dis- 
tinction then established has been since repeat- 
edly recognized. 

At the present day, few constitutional lawyers 
would venture to rest the political jurisdiction of 
Congress over the Territories exclusively upon 
this clause of the Constitution. Fewer consti- 
tutional jurists would contend that cither under 
this clause, or independently of it, Congress haa 
the power by legislation to exclude slavery from 
all the Territories. Of those few who might still 
recognize the existence of the power on grounds 
purely legal, a very small number probably would 
contend that the exercise of such a power in its 
utmost extent would be rightful. From the op-. 
(ration of these remarks, if some of the members 
of the present Congress are to be excepted, this 
is attributable to peculiar causes already men- 
tionedj which have brought together an unusual 
numbt-r of members who misrepresent their con- 
stituents, and entertain opinions to which proba- 
bly f.-w nun in Congress will give utterance after 
the 3d of March, 1857. 

The partition of the Territories made by the 
acts which immediately preceded and followed 
the adoption of the Constitution, was therefore, 
in part, an act of the sovereign States under the 
old Confi :1( ration, and wholly their act so far as 
any prohibition of slavery was involved. By 



11 



this act of the old Congress the Northwestern 
Territory was placed under different regulations 
from the remaining Territories. Slavery was 
excluded. But how was it excluded? Not under 
the Constitution of the United States, which had 
not then been engrossed by its framers, but by 
the unanimous vote of the States in the Congress 
of the Confederation. The result of the partition 
of which this ordinance was»the first act, was, as 
1 have already said, that the slaveholding States 
and the Territories which remained open to the 
introduction of slavery were, together, nearly as 
extensive as the non-slavcholding States and the 
Northwestern Territory. The difference, less 
than eighteen thousand square miles, did not ex- 
ceed twenty-three one-thousandths of the whole 
area of our country at that day. 

The Constitution conferred upon the Congress 
the power to make all laws necessary and proper 
for carrying into execution the powers vested by 
the Constitution in the Government of the United 
Slates, or in any of its Departments; and con- 
tained a provision for the admission of new States 
into the Union by the Congress. This provision 
for the admission of new States could not be 
carried properly into execution without an organ- 
ization of territorial governments, to subsist until 
proper times for the formation of new States. 
The original authority for the organization of ter- 
ritorial governments, under the Constitution, is 
not safely deducible from any other than these 
two clauses. 



Soon after the commencement of the present 
century, we made, under the treaty with France, 
our first acquisition of new territory. The parti- 
tion of this territory made or attempted by Con- 
gress in 1820, is the next subject which requires 
consideration. 

This territory included originally nearly, if 
not quite, a million and a half of square miles, 
bounded by the Rocky Mountains, the Rio 
Grande, Gulf of Mexico, and Mississippi river, 
and a line extending northwardly, as author- 
ized by the treaty of 1783, to the Lake of the 
Woods. By the treaties of 1818 with England, 
and 1819 with Spain, its area was reduced to 
perhaps less than one million one hundred thou- 
sand; say about one million seventy thousand 
square miles. Of this territory there were, to 
die northward of the latitude of 40°, perhaps 
about seven hundred and twenty thousand square 
miles; between 40° and 36° 30', about two hun- 
dred thousand; and southward of 36° 30', about 
oiic hundred and fifty thousand. If, to the last 



amount of one hundred and fifty thousand, we 
add Florida! acquired from Spain in exchange- 
for Texas, under the treaty of 1819, the area 
of territory to the southward of 36° 30' was in- 
creased to about two hundred and ten thousand, 
making the whole area of our acquisitions from 
France and Spain, in this direction, perhaps, 
about one million one hundred and thirty thou- 
sand square miles. If these estimates are correct, 
the intended operation of the attempted partition 
of 1820, called the Missouri compromise, was to 
exclude slavery from about eight hundred and 
fifty-five thousand square miles, or about three 
fourths of this territory, and to permit its exist- 
ence within the remaining fourth, containing 
about two hundred and seventy-five thousand 
square miles, including Florida and the State of 
Missouri. 

The whole area of the United States was then 
about one million nine hundred and twenty thou- 
sand square miles. If this partition had been 
carried into effect, slavery would have been 
finally excluded from about two thirds of this 
whole quantity, say from about one million two 
hundred and sixty thousand square miles, and 
would have continued to exist in the remaining 
third part, or six hundred and sixty thousand 
square miles. 

This partition would have been less unequal in 
value than in quantity. The slaveholding coun- 
try embraced all the territory capable of produ- 
cing the great staple on which our national wealth 
is mainly dependent, all our coast on the Gulf of 
Mexico, and a large proportion of the Atlantic 
coast. The slaveholding States were content, with 
the arrangement, if it could have been carried into 
effect according to its spirit as well as according 
to its literal import. 



Texas was restored to us in 1845. In 1846 our 
title to Oregon, including the present Territory 
I of Washington, was defined and ascertained in 
! such a manner as to render it an available posses- 
sion. This Oregon Territory, with Texas, em- 
I braced an area which may be variously estimated , 
as the western boundary of Texas may be vari- 
j ously defined. Assuming that Texas and Oregon 
! included seven hundred and fifty thousand square 
j miles, about four hundred thousand were to the 
northward and about three hundred and fifty 
thousand to the southward of the old Carolina 
and Virginia line of 36° 30'. On the assumed 
principle of the Missouri compromise, this lino 
had been carried out through Texas by the act 
of annexation of 1845. 



12 



On the ratification of the treaty with England 
in 1846, the first year of our war with Mexico, 
our whole country thus embraced nearly, if not II 

quite, two million seven hundred thousand square 
miles. Slavery was then permitted in scarcely | 
more than a million of square miles. The slave- 
holding States were, however, content to abide 
by the principle of the Missouri compromise. 

This acquiescence of the southern States was 
generally regarded as having obviated certain 
legal difficulties which would probably have pre- 
vented a compulsory enforcement of this prin- 
ciple. The act of 1820, in which the so-called 
compromise originated, left the territory south of 
latitude 36° 30' unrestricted, so that it might be 
organized into States with or without slavery, as 
the inhabitants might afterwards constitutionally 
determine the question for themselves. North- 
ward of that line of latitude, slavery was, by the 
act of 1820, in express terms, "forever prohib- 
ited." The signification of this word " forever," 
if it could have been doubtful, was determined in 
its broadest sense by the Texas annexation act 
of 1845, which, after enacting that such States as 
might be formed out of the portion of Texaslying 
south of 3G°30' north latitude, commonly known 
as the Missouri compromise line, should be ad- 
mitted into the Union with or without slavery, 
asthepeople of each State asking admission might 
desire, contained these additional words: 

" And in such Stale or States as shall be formed out 
of said Territory north, of said Missouri compromise line, 
slavery or involuntary servitude shall be prohibited." 

Whether such an enactment would have been 
constitutionally valid within a Territory before its 
organization as a State, is a doubtful proposition, 
as I have endeavored to show under a former 
head of my remarks; but that it was altogether 
unconstilutiur.al in its application to a State, or to 
a Territory cotpmporaneously with its organiza- ! 
tion or recognition as a State, is a proposition j 
which has, at least three times, been recognized by 
the Supreme Court of the United States, and has, 
in principle, been once, if not twice, directly ad- 
judicated. 

The controversy which resulted in the act called 
the Missouri compromise, m \ rthi less, originated 

in an endeavor of representatives in Congress 
from the northern States to exclude slavery from 
Missouri at the time of her admission as a sov- 
ereign and independent State into the Union. 

I am not one of those who find any difficulty 
in recognizing the origin of the power of Congress 
over newltj-acquired territory, or in defining the 



limitations to the exercise of that power. If it 
were necessary to refer to the successive treaties 

. vvM lerruorv of this description has 

been acquired, they contain all that would be 
requisite for the grant of 'the power, and for its 
definition and limitation. In the French cession, 
in the Spanish and in the Mexican, we find a 
provision, substantially, though not literally, the 
same in each, to the effect that the inhabitants 
of the newly-acquired territory shall, as soon 
as may be consistent with the principles of our 
Government, be incorporated into the Union, 
and admitted to the enjoyment of all the rights 
and privileges of citizens of the United States, 
under the Constitution; and that, in the mean 
time, their rights of property, and certain other 
specified rights, shallbe maintained and protected. 
Independently of these provisions of the treaties, 
and independently of the treaty-making power 
under the Constitution, the authority to establish 
a government within their limits would result from 
the mere fact, that, for all external purposes, the 
United States are a single nation, and, like every 
other nation, liable to the loss, and capable of the 
acquisition, of territory. If we have the power 
to acquire territory, the incidents of its acqui- 
sition under the laws of nations, must, of course, 
attach themselves to its acquisition. We may 
therefore govern them under the Federal Consti- 
tution by congressional legislation. 

But when we come to perform the office of legis- 
lators in Congress, we are bound, not merely by 
the treaties to which I have referred, but likewise 
by the provisions of the Constitution of which 
the language of those treaties is declaratory, to 
exercise this legislative power for the commen 
benefit. Otherwise we cannot rightfully exercise 
it at all. The principles by which congressional 
legislation as to newly-acquired territories ought 
to be regulated are, therefore, the same as thoso 
which were applicable to the old Territories, 
acquired as common property under the acts of 
cession. The fundamental reason, that they were 
acquired by an expenditure of the common blood 
or common treasure of all the States, is assuredly 
applicable to the subjects of every one of the 
successive cessions 



These questions had slumbered peacefully from 
the adoption of the Constitution of the United 
until the organization of Missouri as a 
State was in contemplation, when, in an evil hour, 
they were unwisely agitated, and unfortunately 
became sectional questions. 

Citizens of non-slavcholding States, to whom 



' 



13 



the question of slavery was a mere abstraction, 
who had studied it from a distance, and to whom 
it was of little more importance than that of the 
burning of Hindoo widows in India, influenced 
by speculative notions of humanity, agitated the 
questions in town-meetings and other informally- 
convened assemblages, without even attempting, 
in the outset of their proceedings, to discuss close- 
ly the provisions of the Constitution of the United 
States. Representatives in Congress, under in- 
structions derived mainly from such local assemb- 
lies, rushed headlong, without adequate prepara- 
tion for the contest, into the unfortunate Missouri 
controversy. They were met in Congress in 1819 
and 1820, by southern statesmen, to whom the 
controversy involved a domestic question which, 
to them, was one of every day's experience. It 
was the more familiar to them, as it was vitally 
important to their political, and social, and pro- 
prietary interests. They treated the subject as 
men conversant with all that was involved in it. 
What was the result? Northern statesmen, 
though fully able to cope on other questions with 
those with whom they found themselves com- 
petitors, were, by the force of reason, compelled 
to yield. The Constitution was too strong to be 
overborne. • 

The more judicious of the northern members, 
to relieve themselves from the embarrassment 
in which disobedience of, or continued obedi- 
ence to, the requirements of their constituents 
would have involved them, appealed to the gen- 
erosity of their southern brethren on this floor. 
The late Henry Baldwin, a man of gigantic in- 
tellect and unsurpassed industry of investigation, 
who was equaled by few in practical sagacity — 
whose name has not of late been mentioned with 
*.he praise due to him for his useful mediation 
in this business — took a leading part in these 
efforts to adjust this first sectional controversy. 
For its adjustment, northern men invited their 
brethren of the slaveholding States to agree to a 
partition by means of which this question should 
be settled. It had been found that the attempt to 
impose the restriction on Missouri as a State was 
not only morally wrong, but legally unconstitu- 
tional. The compromise thus proposed from the 
North was carried by southern votes, with the 
aid of no more northern votes than were neces- 
sary in order to pass it. That is the truth of 
history. Those old enough to recollect those 
days will concur in attesting this truth. 

What was the principle of the attempted ad- 
justment? To establish, a second time, by con- 
vention, a line by which property that could not 



be conveniently enjoyed in common, might be 
made the subject of a partition. After the north- 
ern majority of this House had been driven from 
the ground of excluding slavery wholly from the 
limits of the French cession, originally assumed 
by them, there was a warmly-agitated controversy 
where the line of the proposed division should 
be drawn. Another deceased patriot — a distin- 
| guished soldier and statesman — afterwards Pres- 
ident of the United States — for whom those who, 
like myself, differed from him in politics will 
never cease to entertain the highest respect and 
veneration — proposed a line coincident with the 
present northern line of Missouri to the northward 
of that of Kansas, as the limit between the slave - 
holding and the non-slaveholding territory. An- 
other statesman, from the North, had, in an earlier 
stage of the controversy proposed the old line of 
3G° 30'. When the adoption of this line had been 
thus proposed by him, it had been intended as a 
of excluding slavery from Missouri as well 
as from the Territories westward of her borders. 
Finally, so far as the State of Missouri was con- 
cerned, law and reason prevailed. Her constitu- 
tional right to regulate her own domestic institu- 
tions was reluctantly acknowledged. The partition 
was made by a bare majority. The line of 36° 
30', to the westward of the State of Missouri, was 
made the division in terms which I have already 
quoted; That it was, in its greatest attempted 
extension, an illegal enactment is now universally 
admitted. It was, however, acquiesced in by 
the people of the southern States, who were the 
only parties who could reasonably have objected. 
Whether it was founded in law or not, they abided 
by it contentedly. 



Thus the question of slavery in the Territories, 
with occasional agitation from the North, but 
never from the South, rested until after we had 
acquired new territory from Mexico. 

On this occasion the Representatives of the 
slaveholding States in Congress, acting with per- 
fect good faith, agreed unanimously in a proposal 
to extend the old division-line of 36° 30' to the 
Pacific ocean. There was, however, a valid ob- 
jection to this proposed extension of that line 
westward of the Rocky mountains. Govern- 
ments had been previously organized to the west- 
ward of those mountains. Former local institu- 
tions under these governments were entitled to 
protection. By these institutions slavery had 
been excluded from these territories. To have 
changed their condition, in this respect, would 



14 



have been wrong. For this reason the proposal 
of the southern Representatives, though other- 
wise perfectly just and reasonable, was rejected 
by the Congress of 1850. 

California became a member of the Union, as a 
non-slaveholding State, through the legislation of 
that year. This completed the exclusion, of sla- 
very from our portion of the Pacific coast extend- 
ing through seventeen degrees of latitude, of wjuch 
about a fourth was to the southward of 36° 30'. 

Through the same legislation, the territorial 
governments of Utah, lying to the northward, and 
of New Mexico to the southward of 36° 30', were 
organized on the nominal principle of permitting 
the inhabitants to determine their domestic insti- 
tutions for themselves. Those institutions already 
excluded slavery. 

This, therefore, completed its exclusion from 
the whole country acquired from Mexico. This 
country included California, Utah, and New 
Mexico. Its whole area westward of the Rocky 
mountains was about half a million square miles. 
To the Territory of New Mexico, the Mcsilla 
purchase, nearly eighty thousand square miles, 
was afterwards annexed. By the act of 1850, 
about this quantity of territory eastward of the 
Rocky mountains, had, with the consent of Texas, 
also been annexed to New Mexico. The areas of 
the present State of California, and Territories of 
Utah and New Mexico, with these two additions, 
are, together, about six hundred and sixty thou- 
sand square miles. 

This territory, from which slavery has appar- 
ently been forever excluded by this legislation, 
is about equal in area to the sum of the areas of 
the present Territories of Kansas and Nebraska. 

This brings us to the legislation of 1854. 



These Territories of Kansas and Nebraska, 
then without any organize'.] government, wore a 
part pf the French cession lying northward of lati- 
tude 36° 30'. For this line 37° has been substituted 
as the southern boundary of Kansas for local rea- 
sons connected with Indian settlements on the 
bonl r. According to the letter of the Missouri 
compromi rery was to be excluded from 

their limits. But we haves ien that, in 1850, it had 
been found impossible to extend this line west- 
ward across the Rocky mountains. The old line, 
where it had formerly been established, eastward 
of' these mountains, had therefore been wholly 
disregarded in the legislation of 1S50. Thus we 



have seen that a portion of Texas lying south- 
ward of 36° 30', equal, or nearly equal «in area, to 
the seven States of Massachusetts, Rhode Island, 
Connecticut, New York, New Jersey, Delaware, 
and Maryland, was annexed to the non-slave- 
holding Territory of New Mexico. Slavery had 
thus, in 1850, been excluded from this territory 
which, under the Missouri compromise, had been 
left open to slavery. 

\ 
1 started with the proposition, that the refusal 
in 1849 and 1850 to extend the division-line of 
3G° 30' westward of the Rocky mountains, car- 
ried with it an incidental obligation to abrogate 
the restriction of the Missouri compromise in 
Kansas and Nebraska. To take from the slave- 
holding States all the territories westward of the 
R.ocky mountains, and still retain for the non- 
slaveholding States almost the whole of the ter- 
ritories eastward of these mountains, would have 
been unjust. An arrangement mutually beneficial 
westward of the Rocky mountains was impossible. 
But Kansas and Nebraska, north of 37°, were 
still unsettled and unorganized. Their superficial 
area was, as I have said, coextensive with that 
of the territory from which slavery had been ex- 
cluded in 1850. True, Nebraska, comprising the 
greater portion — not less than four fifths — of this 
unorganized territory, is to the northward of 
40°, and therefore probably not open to settle- 
' ment by slaveholders. But, in Kansas, occupying 
! the space between 40° and 37°, there was at least 
| the possibility of a partial ccprivalent for the loss 
by the slaveholding States of a participation in 
the beneficial enjoyment of the territory on the 
Pacific. 

All that was effected, or attempted, in 1S54, by 
the act organizing the territorial governments of 
Kansas and Nebraska, was to permit the set tiers 
in these Territories to regulate for themselves th« ir 
own domestic institutions, including the subject of 
slavery. The concurrence in opinion of statesmen 
who united in this restoration to the people of the 
slaveholding States, in one quarter, of what they 
had been deprived of in another quarter, is denom- 
inated by the chairman of the Committee on Ter- 
ritories a consj iracy against freedom ! 

The Missouri restriction, "a precedent that hail 
run in a storm," was no longer morally, if it 
had ever been legally, in force. It had been 
wholly disregarded in the legislation of 1850. 
But it was upon the statute-book still unrepealed. 

To remove all doubtuponthe question whether 
this restriction was to be legally in force, in these 



15 



Territories, the act of 1854, after giving to the 
Constitution and all laws of the United States not 
locally inapplicable, the same effect within their ' 
limits, as elsewhere within the United States, ex- ! 
cepted the Missouri restriction act; declaring it i 
inoperative and void, as inconsistent with the l 
principle recognized by the legislation in 1850 of 
non-intervention by Congress with slavery in the 
States and Territories. It was further declared to 
be the true intent and meaning of the act not to 
legislate slavery into, or exclude it from, any 
Territory or State, but to leave the people of the 
States and Territories perfectly free to form and 
regulate their domestic institutions in their own 
way, subject only to the Constitution of the 
United States. 

In the controversial discussion of the bill in 
the last Congress, a question arose whether this 
part of it was not equivalent, under the terms of 
the cession by France, to a positive restoration, 
in these Territories, of the institution of slavery 
as it had existed in the French colony, of which 
they had been a portion. If this effect had 
resulted from the act, the settlement of Nebraska 
would have been injuriously retarded. This 
might not have been the case to the same extent 
in Kansas. The difficulty was removed by the 
proposal of a Senator from a slaveholding State, 
adopted liy the votes of southern as well as 
northern Senators and Representatives, to intro- 
duce into the bill a provision that nothing con- 
tained in it should be construed to revive or put 
in force, in either Territory, any law or regula- 
tiofi that may have existed before the date of the 
Missouri restriction — protecting, establishing, 
prohibiting, or abolishing slavery. With this 
proviso the act was passed. 

Some critical objectors liave suggested that this 
act was founded on the principle of what they call 
squatter sovereignty. This term, when applied to 
the administration of the organized government 
of a Territory, has no proper practical meaning. 
Those who thus misapply the term, treat the 
Territories as underlings of the British Board of 
Trade, and some of the superiors of the Board, 
were, before the Declaration of Independence, in 
the habit of treating the governments of the Amer- 
ican Colonies. Adventurers, who assume to ex- 
ercise political orpronrietary rights independently 
of any recognized organization of government, 
may be denominated squatters. . But the denom- 
ination is not applicable to settlers under the ju- 
risdiction of an organized government, merely 
because it is a govci-^Jiacnt of a delegated or 



subordinate character, or because the settlers are 
originally few in number. 

The organization of these governments had 
already been too long delayed. The paths of 
great avenues leading westward in the direction 
of the Pacific ocean were to be laid out within 
and across their borders. Other circumstances 
indicated the necessity of expediting their organ- 
ization. There were, it is true, but few settlers 
already within their limits. The reason was, 
that pioneers who desire to make permanent and 
useful settlements in the wilderness, are not, at 
the present day, willing to cross the frontier until 
they are assured of the protection and security 
of a regularly organized government. They com- 
pose a class of men altogether different from those 
of a former generation, who were, less improp- 
erly perhaps, denominated squatters. There are 
now very few squatters upon any part of this 
continent. A majority of the men of the last 
Congress were practically conversant with the 
subject of the settlement of the Territories. 
They knew that thousands, ready to become set- 
tlers, had long been waiting to cross the line of 
these Territories, until their governments were 
organized. They knew that these men were not 
of a class to become squatters, but that they 
would never enter the Territories until they would 
be at liberty, when there, to enjoy the blessings 
of self-government, to such reasonable extent, at 
least, as might enable them to regulate their own 
domestic institutions, without congressional con- 
trol or interference. 

The whole of what is now comprised under the 
names of Kansas and Nebraska had, until 1854, 
been regarded as a single Territory, and had 
borne the name of Nebraska. The present chair- 
man of the Committee on Territories complains 
because, in that year, Kansas was carved out of 
this Territory and separately organized. His com- 
plaint is two-fold: first, that the whole of this 
vast country was not organized under a single 
territorial government; next, that if two such 
governments were organized, the line between 
them was not the Platte river instead of the par- 
allel of latitude of 40°. 

To this two-fold complaint there is a ready 
answer. The portion of the Territory lying 
southward of 40° was the only portion in which 
slaveholding emigrants could find suitable sites 
for settlement. Between 49° and the latitude of 
the southern boundary of Kansas, slavery al- 
ready existed in Missouri, Virginia, Kentucky, 
Maryland, and Delaware. North of 40° no slave- 
holder could have been expected to establish 



16 



himself. We have already seen that if the whole 
had formed a single Territory, the area of the 
portion to the northward of 4(P would have 
been about four times that of the portion to the 
southward. Such an organization would have 
been a fraud upon the slaveholding States. Em- 
igrants from their country would inevitably have 
been outnumbered by a majority from the non- 
slaveholding country. 

Should Kansas become a slaveholding Terri- 
tory, and ultimately be divided into two or three 
slaveholding States, Nebraska and Minnesota 
must nevertheless be divided into ten or eleven 
non-slaveholding States. It should be our hope and 
prayer, that these future States may be organized 
in such a manner that their inhabitants may retain 
the good-will and fellowship of the people of the 
slaveholding States, and maintain the stability of 
the Union. What is our security for the pres- 
ervation of the Union in peace and harmony, when 
the chairman of the Committee on Territories 
designates legislation by which the principles of 
the Constitution are honestly carried intoefFect,a 
conspiracy against freedom ? What would be our 
security, if amajority of both Houses of Congress 
were to sympathize with his slanderous insinua- 
tions against an honored President of the United 
States, for carrying out and sustaining the consti- 
tutional-rights of the slaveholding portion of our 
Union ? Are we to see the policy upon which our 
progress has hitherto depended abandoned, under 
a suggestion that all which tends to secure a com. 
nion right of enjoyment of property to all sections 
of the Union alike is a conspiracy against freedom ? 



Those impracticable casuists and those trans- 
cendental optimists, who, in a mad crusade 
against slavery, would violate the guarantees 
of the Constitution, and wholly disregard obliga- 
tions of comity between. the confederated sover- 
eignties of our Union, are happily few in number 
and feeble in influence. This was at the last 
presidential election attested by the votes of 
twenty-seven of the thirty-one States cast in 
condemnation of their pernicious dogmas, as it 
will again in like manner be attested before the 
close of the present year. Their force, composed 
in part of intriguing demagogues who take ad- 
vantage of every passing opportunity to inflame 



the passions of the hour for the promotion of 
their selfish political designs, is also composed in 
part of innocently-disposed citizens who are im- 
perfectly instructed in the principles of our con- 
stitutional frame of Government. The latter class, 
acting under mistaken ideas of benevolence, may 
be the more easily excused because the frame- 
work of this Government is, of necessity, very 
complicated, from the inherent difficulties of a 
system under which several sovereignties arc, for 
specified purposes only, united into one, and are, 
for all other purposes, as distinct and independent 
as if no such union had been formed. Circum- 
stances, however, from time to time compel every 
citizen to picture to his mind the state of things 
which would exist if there were no constitutional 
union of the States. Let these casuists and tran- 
scendentalists then suppose, under such a state 
of things, the case of a proposal to form a confed- 
eration of the States for certain limited purposes, 
recognized by all as mutually beneficial, but upon 
a condition that the subject of slavery be placed 
beyond the control of the proposed united gov- 
ernment. They will then less imperfectly under- 
stand the position which was occupied by the 
framers of our present Constitution, and will be 
less unable to comprehend the principle of non- 
intervention with slavery, which they now incon- 
siderately condemn. They will then understand 
that if there w r ere no Constitution, they would be 
incapable, as they now are, of intervening to alter 
the condition of slaves within a State; incapable, 
as they now are, of preventing the slaveholder 
from emigrating with his slaves to unoccupied 
wilds beyond the borders of the States; incapable 
of preventing him from making and maintaining 
settlements there, and from participating in the ' 
establishment of permanent local institutions on 
all domestic subjects. Those who cannot under- 
stand that the settler from a slaveholding State 
must then be able to participate with his fellow- 
settlers from non-slaveholding States in the local 
establishment or the local exclusion of domestic 
servitude as one of these institutions, must have 
been entranced and led captive, not by the force 
of reason, but by such eloquence as that of the 
chairman of the Committee on Territories, and 
his associates in the crusade against constitutional 
rights, which would overwhelm these most sa- 
cred rights, if a remedy could not be found in the 
exercise of the elective franchise. 



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